IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF WASHINGTON ) ) ) ) ) ) ) ) ) ) ) INTRODUCTION

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1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF WASHINGTON JUSTICE, an American Quarter Horse, by and through his Guardian, Kim Mosiman, v. GWENDOLYN VERCHER, Plaintiff alleges: Plaintiff, Defendant. Case No. INTRODUCTION COMPLAINT PERSONAL INJURY (Negligence Per Se CLAIM OVER $0,000; CLAIM NOT SUBJECT TO MANDATORY ARBITRATION FILING FEE $0 PER ORS 1.(1(c JURY TRIAL REQUESTED This case involves Justice, a horse who suffered extreme pain, distress, and permanent injury due to the criminal neglect of Defendant Gwendolyn Vercher. Disregarding the requirements of Oregon law, Defendant denied Justice adequate food and shelter for months, abandoning him to starve and freeze. As a result of this neglect, Justice was left debilitated and emaciated. He continues to suffer from this neglect, including a prolapsed penis from frostbite. These injuries will require special and expensive medical care for the remainder of his life. 1 - COMPLAINT

2 Justice immediately after he was rescued The Oregon Legislature has expressly recognized that [a]nimals are sentient beings capable of experiencing pain, stress and fear. ORS.0(1. Similarly, Oregon courts have recognized that animals have their own cognizable legal interests. The Oregon Supreme Court in State v. Nix, recognized that animals are properly considered the victims of violations of the animal cruelty statutes. Or, -, Pd (01, vac d on procedural grounds, Or, Pd 1 (01; reasoning adopted in State v. Hess, Or App, Pd (01, review denied, Or, Pd (01. The Court held that Oregon s anti-cruelty laws intend to protect animals themselves, because the legislature s focus was the treatment of individual animals, not harm to the public generally or harm to the owners of the animals. Id. at -0. Similarly, in State v. Fessenden, the Court referred to a neglected horse as the victim of the crime an animal entitled to statutory protection. Or,, Pd (01. Oregon courts recognize both that animals are victims and that victims have a right to sue their abusers for the harms they have inflicted. Justice is asking the Court to take these well- - COMPLAINT

3 established rules to the logical next step and recognize that as a member of the class intended to be protected by Oregon s anti-cruelty statute, Justice may bring a negligence per se claim based on the standard of care in the anti-cruelty statute, ORS.0 et seq. PARTIES Plaintiff Justice (formerly known as Shadow is an American Quarter Horse and Appaloosa cross, currently residing at the Sound Equine Options training barn in Troutdale, Oregon. Justice brings this negligence per se claim as a legislatively-recognized sentient being, ORS.0(1, a victim of the defendant s criminal neglect, and as sole beneficiary of the Justice Equine Trust. Kim Mosiman is the Executive Director of Sound Equine Options and is Justice s guardian. She is the person responsible for Justice s care and well-being. As such, Justice s interests are represented in this suit by and through Ms. Mosiman pursuant to ORCP (A. 1. Defendant Gwendolyn Vercher resides at SW Firdale Road, Cornelius, Oregon JURISDICTION AND VENUE Subject matter jurisdiction is conferred on this Court by ORS This Court has personal jurisdiction under ORCP, as Defendant is a natural person present within this state at the time of service. Venue is proper in this Court under ORS 1.00 because Defendant resides in Washington County at the commencement of this action. 1 Plaintiff is prepared to file a motion for Ms. Mosiman s appointment as guardian if the Court finds that is the appropriate procedure in this case. - COMPLAINT

4 FACTS On information and belief, Defendant had custody and control of Justice, then-named Shadow, throughout the period during which he suffered the neglect described herein. On March, 0, Oregon Horse Rescue ( OHR received a phone call from Defendant s neighbor requesting that OHR take custody of Justice because he was underfed and emaciated. On March, 0, Defendant, at the urging of the concerned neighbor, took Justice to be examined by Dr. Victor Alexander of Alexander Equine Veterinary Services, Inc. Dr. Alexander observed that Justice s penis had prolapsed and could not retract because it was so swollen and heavy. According to Dr. Alexander s report, Justice s penis was red [and] raw and oozing serum and the skin was chapped and scabbed. Dr. Alexander scored Justice a out of on the Justice was found extremely emaciated. Henneke Horse Body Condition Scale ( BCS. A BCS score of indicates emaciation, whereas a healthy horse scores between and. Dr. Alexander concluded that Justice would need to be housed in a stall or rehomed. - COMPLAINT

5 On March 1, 0, David Kelly, Co-Executive Director of OHR, left a voic and sent an to Sound Equine Options ( SEO with an urgent request for SEO s assistance in temporarily housing a very neglected horse. On March 1, 0, Defendant surrendered Justice to Ms. Mosiman of SEO, having been persuaded to do so by her neighbor. Ms. Mosiman transported Justice directly to Eagle Fern Equine Hospital ( the Hospital for urgent veterinary care and hospitalization. Dr. David Asmar of Eagle Fern Equine Hospital examined Justice on March 1, 0, observing that Justice was lethargic and weak and had significant difficulty walking. Dr. Asmar found that Justice was 00 pounds underweight, with a BCS of 1 out of, indicating extreme emaciation. When offered food, Justice had an excellent appetite and ate quickly without pausing between bites, behavior commonly observed in starved horses. Given Justice s severely emaciated condition, Dr. Asmar had to wait two days for Justice to be healthy enough for the sedation required for a more thorough examination. On March, 0, Dr. Asmar examined Justice under sedation. Justice s penis was swollen, traumatized, infected and prolapsed, with a moderate amount of necrotic tissue that had to be removed. Justice was unable to retract his penis to its normal position inside its sheath, likely due to his severely debilitated body condition. The prolonged penile prolapse had prevented drainage of the tissue, which then caused swelling. Having been unable to retract his penis and having been exposed to chronic cold temperatures, Justice developed penile frostbite, which led to severe trauma, infection, and scarring. - COMPLAINT

6 A prolapsed penis may cause nerve damage, resulting in permanent penile paralysis. Justice s prolapsed penis is the most severe case Dr. Asmar has ever treated. During the March, 0 examination, Dr. Asmar noted that Justice also suffered from lice and rain rot, a bacterial skin infection that irritates a horse s hair and skin and may result in a continuous painful sheet of scabbing. Lice and rain rot are common in neglected horses and may generally be avoided with good grooming and adequate nutrition. On March 0, 0, Ms. Mosiman contacted Oregon Humane Society ( OHS to brief it on Justice s history and condition. During Justice s ten-day hospitalization, Justice s prolapsed penis was placed in a sling to decrease swelling and to prevent further damage to tissue and nerves. The Hospital followed the University of California-Davis protocol for refeeding a starved horse. By March, 0, Justice had already begun gaining weight and his energy level had improved significantly. Ms. Mosiman transported Justice from the Hospital to the SEO rescue and training facility, where Justice continued to receive topical application of silver sulfadiazine cream according to Dr. Asmar s instructions. On May 1, 0, Dr. Asmar examined Justice at the SEO facility. Justice was bright and alert and had already gained about pounds. Justice s penis had improved, but remained semiprolapsed. The section of necrotic tissue on Justice s penis had healed, leaving a thick layer of scar tissue. The lice and rain rot had also improved. While Justice was stronger physically, he continued to show signs of distress such as stall-circling, a form of compulsive behavior resulting from anxiety. - COMPLAINT

7 On June, 0, Justice was castrated in order to reduce the frequency of erections, which would then lead to reduced irritation and a greater chance of recovery. On August, 0, almost six months since Dr. Asmar first treated him, Justice had regained substantial muscle and scored a BCS of out of. Justice had considerably more strength and energy than he did previously, and appeared able to run without issue. However, Justice s penis remained semi-prolapsed. Given the lack of improvement in Justice s penis after almost six months of care, it is likely Justice suffered permanent penile paralysis and prolapse from the trauma and nerve damage caused by his starvation, chronic exposure to cold temperatures, and lack of timely veterinary care. Justice s injury obstructs his ability to retract his penis. Justice will likely eventually require surgical intervention in the form of a partial amputation of his penis. Placing a horse under anesthesia for surgery comes with substantial risk, such as serious injury and death. Justice will also likely have a lengthy and potentially painful recovery. Given the length of time it takes to sustain the degree of damage Justice did, it appears he had been suffering from a prolapsed penis for several months prior to receiving treatment at the Hospital. Further, given the extent of Justice s emaciation over 00 pounds underweight Justice had been starving for several months prior to receiving treatment. During these months Justice would have been in significant pain and chronically hungry. As of the commencement of this action, Justice s penis remains prolapsed. - COMPLAINT

8 Justice will require special care in order to reduce the risk of irritation, infection, or injury to his penis. Justice will never have a normal healthy penis and will require special care to prevent the recurrence of a prolapse or aggravation and irritation of the area. Due to his extensive injuries, Justice will require costly care that he otherwise would not need, including unique sheltering needs, medications, and socialization training. On July, 0, Defendant pled guilty to neglect of Justice in the first degree. Pursuant to her criminal plea agreement, Defendant agreed to pay restitution to Sound Equine Options for the costs of Justice s care incurred prior to July, 0. Defendant failed to pay the restitution by the deadline of August, 0. Defendant s plea agreement does not include restitution for the cost of Justice s care after July, 0. Finding a permanent home for Justice is more difficult, if not impossible, due to the substantial additional costs caused by the Defendant s neglect. On August, 0, Ms. Mosiman created the Justice Equine Trust, pursuant to ORS., of which Justice is the sole beneficiary. Ms. Mosiman created the trust in order to provide, in whole or in part, for Justice s care from July, 0 until the end of Justice s life, with any funds obtained in this action against Defendant. LEGAL BACKGROUND Oregon s Anti-Cruelty Statute Oregon s anti-cruelty statute generally protects animals from abuse and neglect. - COMPLAINT

9 A person commits the crime of animal neglect when they intentionally, knowingly, recklessly, or with criminal negligence fail to provide minimum care for an animal in their custody or control. ORS. and.0. As the laws regarding the treatment and status of nonhuman animals continue to progress across the country, Oregon in particular has led the way with compassionate legislation and jurisprudence that recognize animals unique position in people s hearts and in the law. State v. Newcomb, Or, -, Pd (01; see also Fessenden, Or at, Pd (recognizing that Oregon s animal welfare statutes impose one of the nation s most protective statutory schemes. The Legislature has declared that [a]nimals are sentient beings capable of experiencing pain, stress and fear who should be cared for in ways that minimize pain, stress, fear and suffering. ORS.0(1, (; see also Newcomb, Or at, Pd. As sentient beings, animals are the intended beneficiaries of Oregon s animal cruelty laws and therefore are victims when those laws are violated. Nix, Or at -0, Pd (finding the legislature s focus was the treatment of individual animals, not harm to the public generally or harm to the owners of the animals ; Fessenden, Or at, Pd (citing Nix for the proposition that animals are victims for purposes of animal welfare statutes. The Oregon Supreme Court s opinion in Nix was subsequently vacated on purely procedural grounds, Or, Pd 1 (01, and is therefore not itself binding precedent. Hamilton v. Meyers, Or,, Pd 1 (. However, the Nix reasoning was expressly adopted by the Oregon Court of Appeals in State v. Hess, and is therefore binding. Or App, Pd (01. Moreover, a court may rely on or adopt the reasoning of a vacated opinion. State v. Magana, Or App 1, n.1, Pd (01. Further, the Oregon Supreme Court subsequently relied on its finding in Nix that animals are the victim for purposes of animal welfare statutes. Fessenden, Or at. While the Court s opinion in Fessenden was issued prior to it vacating Nix, the opinion in Fessenden has not been disturbed. - COMPLAINT

10 In Fessenden, the Supreme Court of Oregon held that where an officer had probable cause to believe that defendants were committing animal neglect under ORS. by failing to provide minimal care for the victim of that crime the horse, protecting the horse from unlawful harm was such an essential law enforcement responsibility as to justify a warrantless search under the exigent circumstances exception to the Fourth Amendment of the United States Constitution and article I, section of the state constitution. See Fessenden, Or at -, Pd. The Oregon Supreme Court characterized the Court of Appeals as having gone a step further, conclud[ing] that animals were included in the class of persons that officers may aid without a warrant on private property under the emergency aid exception, given the interest in protecting nonhuman animals from unnecessary pain, injury, trauma, and cruel death. Id. at (quoting and affirming on other grounds State v. Fessenden, Or App,, Pd (01. Oregon courts possess expansive powers under the common law and the state constitution to protect injured parties. See, e.g., Couey v. Atkins, Or 0, Pd (01; State ex rel. Ricco v. Biggs, Or 1, 0, Pd (, overruled in part, State ex rel. Maizels v. Juba, Or, 0 Pd 0 ( (discussing courts duty to exercise their inherent power for ensuring fairness and justice whenever public or private interests require. Against this legal backdrop, and under these unique circumstances, where Oregon recognizes the importance of animals interests in avoiding suffering as sentient beings, and The Oregon Supreme Court based its holding in Fessenden on the more narrow exigent circumstances exception to the Fourth Amendment without considering whether animals are persons under the emergency aid exception. Id. at, Pd. That the Oregon Supreme Court affirmed on other grounds should not disturb the binding effect of the Court of Appeals holding, since the Court of Appeals frequently cites to holdings from opinions that were subsequently affirmed on other grounds. See, e.g., State v. Hendon, Or App,, Pd 1 (00 (citing State v. Amaya, Or App, Pd 1 ( COMPLAINT

11 where this Court has broad inherent authority to prevent injustice, a finding that Justice may bring this action is permissible and necessary. CLAIM FOR RELIEF (Negligence per se Plaintiff re-alleges and incorporates the paragraphs above. Oregon recognizes negligence causes of action based on common law. See, e.g., Deckard v. Bunch, Or, 1, 0 Pd (01; Chapman v. Mayfield, Or,, 1 Pd (01. Negligence per se is a special type of negligence in which the standard of care is expressed by a statute or rule rather than by general reference to reasonableness. Abraham v. T. Henry Construction, Inc., 0 Or, n., Pd (0. A plaintiff may state a claim for negligence per se by alleging that (1 defendants violated a statute; ( plaintiff was injured as a result of that violation; ( plaintiff was a member of the class of persons meant to be protected by the statute; and ( that the injury plaintiff suffered is of a type that the statute was enacted to prevent. McAlpine v. Multnomah Cty., Or App 1, 1, Pd (. At all material times, Defendant was required to comply with Oregon s anti-cruelty statute enacted for the protection of animals, including Justice. ORS.(1 and.0(1. Defendant violated the anti-cruelty statute by failing to provide minimum care for Justice as required by law. ORS.(1 and.0(1. Upon examination on March, 0, Dr. David Asmar determined that Justice had been seriously injured as a result of Defendant s criminal neglect. Specifically, Defendant s failure to provide Justice with minimum care caused - COMPLAINT

12 Justice to suffer from starvation, emaciation, skin disease and unimaginable pain, and rendered him unable to retract his penis to its normal position inside its sheath. Exposed to chronic cold temperatures, Justice s penis became traumatized, swollen, infected, and frostbitten. Justice was therefore injured as a result of Defendant s violation of the anti-cruelty statute. His penile injury, as well as the months of constant hunger and exposure to the cold, caused him substantial pain and suffering. Justice is a member of the class for whose benefit Oregon s anti-cruelty laws were passed. As the Oregon Supreme Court concluded after an exhaustive examination of the text, structure, and history of Oregon s anti-cruelty laws, the principal purpose of adopting the [anti-cruelty laws] was to prevent the suffering of animals. Although early animal cruelty legislation may have been directed at protecting animals as property of their owners or as a means of promoting public morality, Oregon s animal cruelty laws have been rooted for nearly a century in a different legislative tradition of protecting individual animals themselves from suffering. Nix, Or at, Pd ; see also Fessenden, Or at, Pd (citing to Nix for the proposition that animals are victims for purposes of animal welfare statutes. The injuries that Justice suffered are of the type Oregon s anti-cruelty statute was enacted to prevent. See Nix, Or at 0, Pd (finding, under the animal welfare statutes, the injury is not... to the public generally or... the owners of the animals... [but] to an animal, regardless of who owns it ; ORS.0( ( Animals should be cared for in ways that minimize pain, stress, fear and suffering.. As a result of defendant s negligence, Justice has incurred past and future expenses for reasonable and necessary medical bills and long-term care in an amount to be determined at trial but not less than $0, COMPLAINT

13 As a result of defendant s negligence, Justice has incurred noneconomic damages for pain and suffering in an amount to be determined at trial. PRAYER FOR RELIEF WHEREFORE, Petitioner prays that the Court issue the following relief: A. Economic damages for past costs of care incurred from July, 0 to present and future costs of care in an amount to be determined at trial but not less than $0,000; B. Non-economic damages for pain and suffering in an amount to be determined at trial; C. Reasonable attorneys fees as permitted by law in an amount to be determined at trial; D. Its costs and disbursements; and E. All such other and further relief as the Court may deem just, proper, and equitable. Respectfully submitted, DATED: May 1, 0 By: LANE POWELL PC /s/ Michelle Smith MICHELLE SMITH (OSB No SW nd Avenue, Suite 0 Portland, OR 0 Tel: (0 - smithm@lanepowell.com MATTHEW LIEBMAN (pro hac vice pending ANIMAL LEGAL DEFENSE FUND E. Cotati Avenue Cotati, CA 1 Tel: mliebman@aldf.org SARAH K. HANNEKEN (OSB No. 1 ANIMAL LEGAL DEFENSE FUND SW Taylor Street #00 Portland, OR 0 Tel: (0 - ext. shanneken@aldf.org 1 - COMPLAINT

14 MATTHEW HAMITY (pro hac admission pending LAW OFFICE OF MATTHEW HAMITY Kains Avenue Albany, CA 0 Tel: ( mhamity@gmail.com Attorneys for Plaintiff 1 - COMPLAINT